Citation Nr: 0126718
Decision Date: 11/26/01 Archive Date: 12/03/01
DOCKET NO. 00-22 611A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to payment of educational assistance benefits
under Chapter 30, Title 38, United States Code (Montgomery G.
I. Bill Benefits) for the period from November 8, 1998, to
January 31, 1999.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. M. Fogarty, Associate Counsel
INTRODUCTION
The veteran reportedly served on active duty from October
1993 to October 1997.
This case is before the Board of Veterans' Appeals (Board) on
appeal from a May 2000 decision by the Atlanta, Georgia,
Regional Office (RO) of the Department of Veterans Affairs
(VA). A notice of disagreement was received in June 2000, a
statement of the case was issued in September 2000, and a
substantive appeal was received in November 2000. The
veteran testified at a Board hearing conducted at the St.
Petersburg, Florida, Regional Office in June 2001.
REMAND
The material facts in this case are not in dispute. The
veteran's original application for educational benefits was
received in October 1996. A June 1997 letter from the RO
informed the veteran that he had been awarded educational
benefits under the Montgomery G. I. Bill based on his
enrollment in a flight training course for the period from
December 13, 1996 to March 17, 1997. In a subsequent letter,
the veteran was notified of his award of educational
assistance benefits under the Montgomery G. I. Bill for a B-
737 Type Rating Course at the Aeroservice Aviation Center
during the period from January 5, 1998 to January 31, 1998.
In April 2000, the RO received from the veteran a VA Form 22-
1995, Request for Change of Program or Place of Training.
The form was signed by the veteran and dated March 28, 2000.
At that same time, the RO also received Monthly Certification
of Flight Training in the Beechcraft 1900 type rating program
for the periods from November 8, 1998 to November 30, 1998,
December 1, 1998 to December 31, 1998, and January 1, 1999 to
January 31, 1999. A VA Form 22-1999, Enrollment
Certification, was also received in April 2000 from Kemper
Aviation Training, Inc. for a Beechcraft 1900 type rating
flight-training program which began November 8, 1998. This
form was dated March 28, 2000. The aforementioned documents
were apparently received by the RO on April 12, 2000.
In a May 2000 letter to the veteran, the RO denied
entitlement to educational assistance benefits under the
Montgomery G. I. Bill for the period from November 8, 1998,
to January 31, 1999, on the basis that the information was
received over one year after the beginning date of the term
and that the applicable regulation prohibited payment of
benefits prior to one year from the date VA received the
enrollment certification. This determination by the RO was
apparently based on the provisions of 38 C.F.R. § 21-7131 in
effect prior to June 3, 1999.
However, the criteria for establishing commencing dates for
an award of educational assistance benefits, to include
Chapter 30 benefits, were amended, effective from June 3,
1999. See 64 Fed. Reg. 23769-23773 (1999). Under the new
version of 38 C.F.R. § 21.7131(a)(2), it appears that the
date of receipt of the veteran's application or enrollment
certification is no longer relevant for purposes of
determining the commencement date of a second or subsequent
award of educational assistance. The applicability of this
new regulation has not been considered by the RO.
Further, on November 9, 2000, the President signed into law
the Veterans Claims Assistance Act of 2000 (VCAA). Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000), now codified at 38 U.S.C.A. §§ 5102, 5103,
5103A, 5107 (West Supp. 2001). This newly enacted
legislation provides, among other things, for notice and
assistance to claimants under certain circumstances. VA has
issued final rules to amend adjudication regulations to
implement the provisions of VCAA. See 66 Fed. Reg. 45,620
(Aug. 29, 2001) (to be codified as amended at 38 C.F.R §§
3.102, 3.156(a), 3.159 and 3.326(a)). Where laws or
regulations change after a claim has been filed or reopened
and before the administrative or judicial process has been
concluded, the version most favorable to the appellant will
apply unless Congress provided otherwise or has permitted the
Secretary of Veterans Affairs to do otherwise and the
Secretary has done so. See Karnas v. Derwinski, 1 Vet. App.
308 (1991).
For the reasons set forth above, the Board finds that further
review by the RO is
necessary before the Board may properly proceed with
appellate review. Accordingly, the case is hereby REMANDED
to the RO for the following actions:
1. The RO should review the claims file
and undertake any necessary action to
comply with the Veterans Claims Act of
2000 and implementing regulations.
2. After completion of the above and any
other development deemed necessary, the
RO should review the veteran's claim and
determine the applicability of the
current version of 38 C.F.R.
§ 21.7131(a)(2) to the facts of this
case.
3. If the benefit sought remains denied,
the veteran should be furnished an
appropriate supplemental statement of the
case and be afforded an opportunity to
respond. Thereafter, the case should be
returned to the Board for appellate
review.
The purpose of this remand is to ensure compliance with
applicable laws and regulations. The veteran is free to
submit additional evidence and argument in support of the
matters addressed by the Board in this remand.
ALAN S. PEEVY
Member, Board of Veterans' Appeals